I Am Troy Davis

Dublin, 2010

On September 21, 2011, the State of Georgia plans to kill Troy Davis by lethal injection. Again. This is the fourth time the State of Georgia has scheduled Davis for death. In 2007 he was spared with less than 24 hours notice. In September 2008, the hearse was waiting at the door and he was less than two hours away from the gurney. A month later the execution was halted three days before execution. And now, the rollercoaster from hope to despair has come to September 21, 2011.

Troy Davis’s conviction stems from the 1989 death of a Savannah police officer, Mark Allen McPhail. The rollercoaster, for Troy Davis and his family and for the family of the officer, has been lurching back and forth for 22 years. And with each year, doubt about the conviction has grown as witnesses have recanted and as jurors spook their unresolved doubts. Lurking in the background is alarming possibility that the wrong man is waiting for the needle and that the real murderer has escaped.

The Atlanta Journal Constitution reports:

With only days before his scheduled execution, an effort to spare convicted killer Troy Davis is gathering thousands in rallies, vigils and other last-minute events from Atlanta to Peru to Berlin.

Citing doubts about his guilt, national leaders of the NAACP and Amnesty International led hundreds in a protest Friday against executing the man a Georgia jury said killed a Savannah police officer in 1989. Amnesty International declared a Global Day of Solidarity for Troy Davis, with 300 events across the United States and the globe, including in New York, Washington D.C., San Diego, Paris and Oslo.

Former President Jimmy Carter, Pope Benedict XVI and Nobel laureate Desmond Tutu are among those calling for his execution to be halted. And this week, Davis supporters presented 663,000 petitions to the Georgia Board of Pardons and Paroles asking for his life to be spared.

Troy Davis has one last chance to ask for leniency. The Georgia Board of Pardons and Paroles, which has the sole authority in Georgia to commute death sentences, will meet Monday to consider Davis’s case.

That means that this weekend is the last opportunity to sign a petition and to stand with more than 600,000 others for sparing Troy Davis.

The petition is here.

Details about the case are here from 2006 and here from 2008.

An excellent first person view is here (h/t OPOL).

Law And Disorder: Ending State Killing

It's not every day that I get a welcoming forum to discuss the death penalty and why state killing should be abolished. So I was particularly delighted to appear today on WBAI's "Law and Disorder". Want to hear what I had to say? Click this to play the interview.



A special thanks to Michael Smith, Michael Ratner and Heidi Bogosian for inviting me and to WBAI in New York for broadcasting this show both on the radio and the Internet.

h/t to Edger for embed

State Killing: Travesties Of Justice Just Keep On Coming

Today's New York Times tells the story of yet another travesty of justice from Alabama in a death penalty case. This is the kind of thing that unfortunately is no longer a revelation. It's what you might expect. And it's happened over and over again. The Times reports:

Kenneth B. Trotter had been practicing law for less than a year when an Alabama judge appointed him to assist two more seasoned lawyers in defending a man facing the death penalty.

After the man, Holly Wood, was convicted in 1994 of murdering his former girlfriend, Mr. Trotter led the effort to persuade the jury to spare his life. The young lawyer came up just short: the jury recommended death by a vote of 10-to-2, the minimum allowed under Alabama law.

Mr. Trotter failed to pursue or present evidence that his client was mentally retarded, though he had a competency report in hand that said as much. In September, a divided three-judge panel of the federal appeals court in Atlanta ruled that he had made a strategic decision, not a grave error.

Judge Rosemary Barkett, the dissenting judge, saw it differently.

“An inexperienced and overwhelmed attorney,” Judge Barkett wrote of Mr. Trotter, “realized too late what any reasonably prepared attorney would have known: that evidence of Wood’s mental impairments could have served as mitigating evidence and deserved investigation so that it could properly be presented before sentencing.”

What is this saying? Maybe Mr. Wood wouldn't have been sentenced to death if the lawyer at his penalty phase had a couple years more seasoning. Or had introduced in evidence the document he apparently had in his hand showing that Wood was retarded. Or maybe Wood wouldn't have faced lethal injection if the Alabama courts literally followed Supreme Court decisions like Ring (forbidding the execution of people with an IQ less than 70) and didn't invent more "death friendly" interpretations of them. Or maybe Wood wouldn't have been sentenced to death if Alabama required a unanimous rather than a 10-2 verdict for death. And maybe Mr. Wood's death penalty wouldn't have been upheld if 2/3's of the Eleventh Circuit panel understood that leaving out mitigation evidence isn't ever a strategy for saving the accused, it's a lapse that can almost certainly kill him. Put another way, look how very close Wood came to a sentence of life without parole and not a state killing.

Is it tolerable to rational humans that all of these small, somewhat technical points are the differences between living and dying, between whom the state kills and whom it spares? I think not. These points only underscore the capriciousness of state killing.

Look at the admission of ineffectiveness Trotter made back in 1994 when he wrote to a colleague:

Mr. Trotter said he was anxious and lost. “I have been stressed out over this case and don’t have anyone with whom to discuss the case, including the two other attorneys,” Mr. Trotter wrote.

Clearly, the appointed defense lawyer was in over his head in the task of saving Wood from execution. He had one year of practice. He had no experience. He had two lawyers with him whom he couldn't talk. He had Wood's life in his hands. And he was being paid up to a maximum of $1,000 for the sentencing. It's a recipe for disaster. It's a recipe for the state's killing people who shouldn't be killed. But it's not unusual. And it's not just an Alabama problem. Not by a long shot.

Fortunately, the story doesn't end in the Eleventh Circuit. The Times informs us that the Supreme Court has now granted certiorari:

Last month, the United States Supreme Court agreed to hear Mr. Wood’s case. It will give the court a glimpse of Alabama’s capital justice system, which is among the most troubled in the nation. The state lacks a public defender’s office, elects judges for whom death sentences are a campaign promise, pays appointed lawyers a pittance and sometimes leaves death row inmates to navigate the intricacies of post-conviction challenges with no lawyers at all.

The root problem is money, said Bryan Stevenson, the executive director of the Equal Justice Initiative of Alabama, a nonprofit law firm that represents poor people and prisoners. The lawyers appointed to represent Mr. Wood in 1994 were entitled to a maximum of $1,000 to prepare for the penalty phase of the trial.

“It ought not be a shock to anyone that you get this kind of defense with that kind of funding,” Mr. Stevenson said. “The poor quality of indigent defense is still the ugliest scar on capital punishment in America.”

Bryan Stevenson is a brave and talented and resourceful lawyer. He's right that a root of the problem is money, but it's not "the" root. There's another, deeper root, one that is far more entrenched, and that is the insatiable desire of Alabama and the other states in the death belt for retribution in certain cases. An eye for an eye might leave the whole world blind, but that's not the culture in Alabama, and it's not something that deters revenge. Especially when the accused is not white, especially when the victim is white, especially when the accused is poor, or developmentally disabled. Providing inadequate, ineffective counsel is just a part of the revenge.

There's no question why revenge against Wood for his crime led to seeking the death penalty. Wood committed a horrendous brutal crime:

In September 1993, three weeks before Mr. Trotter was admitted to the bar, Mr. Wood broke into the home of a former girlfriend, Ruby Gosha, and killed her while she was sleeping with a shotgun blast to her head. Soon afterward, according to testimony from a cousin, Mr. Wood admitted to shooting Ms. Gosha, saying he had “blowed her brains out and all she did was wiggle.” Mr. Wood was the father of one of Ms. Gosha’s children.

You can easily understand why revenge called out for an execution. Given the culture, it made sense to prosecutors to seek the death penalty. So they did. And given the culture it made sense to appoint lawyers who were clearly not up to the task of saving Wood's life. That's not something that the state intends to "fix" by appointing better lawyers, by creating a statewide, capital public defender program. The inadequacy of the defense is just another part of the state killing machinery.

Sadly, we're going keep seeing these state killing stories from the death belt as long as there is a death penalty. Yes, it's barbarianism. Yes, it's disgraceful. And it won't be ended until voters across America are ready to say it's enough, we cannot have any more state killing, we cannot afford the extremely high expense of state killing, life without parole is more than enough punishment, and it adequately protects us.

Governor Rell Vows To Preserve State Killing

What a disgrace. On Friday, the Connecticut legislature passed a bill abolishing the death penalty. I asked readers of my essay to call or email Governor Rell to ask her please to sign the bill. There was, I pointed out, a strong chance that the Republican Governor, a long time death penalty supporter, would veto the bill.

Today's Hartford Courant says that Governor Rell vows to veto the measure when it gets to her desk. It might take a few weeks to get there:

Just hours after the state Senate gave final legislative approval Friday to a historic measure abolishing the death penalty in Connecticut, Gov. M. Jodi Rell came out with an expected announcement:

She said she was going to veto the measure as soon as it hits her desk.

"I appreciate the passionate beliefs of people on both sides of the death penalty debate. I fully understand the concerns and deeply held convictions of those who would like to see the death penalty abolished in Connecticut," she said in a statement.

"However, I also fully understand the anguish and outrage of the families of victims who believe, as I do, that there are certain crimes so heinous — so fundamentally revolting to our humanity — that the death penalty is warranted."

What nonsense. The families of victims are far from unanimous that the death penalty is warranted. In fact, as the Courant pointed out in its photo caption, Friday "[f]amilies of victims of murder [spoke] at a press conference in support of a bill passed by the legislature Thursday that would abolish the death penalty. Pictured are Gail Canzano, at podium, Elizabeth Brancato of Torrington, State Representative Gary Holder-Winfield of New Haven, Rev. Walter Everett , Cindy Siclari of Monroe and Anne Stone of Farmington." So the Governor's invocation of wishes of the families of victims rings hollow.

We can all easily understand how appealing revenge on killers might be, but the overwhelming majority of civilized societies in the world have now abandoned that barbarian argument. Rell chooses, however, to dress up the old canard in victims' rights clothing. The fact is that she's not doing anything for victims' families by permitting the state to kill killers. And she's certainly not doing anything for the rest of us, in whose names these state killings will be carried out. State killing doesn't deter killing, and it doesn't bring "closure" to the families of victims.

Governor Rell's vowing the veto because she allegedly "believes" in the death penalty. And when Republicans enact policies just because they believe in them-- surely the memory of George W. Bush has not been forgotten-- you know that irrationality has prevailed.

You might want to tell Governor Rell that the death penalty is a bad idea, that we can live without it, and that she's making a mistake if she vetoes this bill.

Please telephone Governor Rell (860.566.4840) or email her (Governor.Rell@ct.gov) and let he know that it's time for Connecticut to step into the 21st Century. It's time for her to sign the death penalty abolition bill.

Please Ask Connecticut Governor Rell To Sign The Death Penalty Abolition Bill

Early this morning the Connecticut Senate voted to abolish Connecticut's death penalty. The vote was 19-17. The bill now goes to Governor Jodi Rell (R). She sounds like she will veto the bill. So, if you care about the value of human life and making Connecticut and America more just and ending the barbarism that is the death penalty, this is an important time to spend a few moments to call or email Governor Rell to ask her to sign the bill. The phone is 860.566.4840. The email: Governor.Rell@ct.gov.

Connecticut is not in the "death belt." Never has been. Connecticut has had one execution in the past 48 years. Michael Ross was executed in 2005 only after he withdrew his appeals and "volunteered" for execution, and that decision was fought as far as it could go in the Courts. Regardless, there seems to be strong support for retaining the death penalty in the Connecticut Senate among its Republican members, some Democrats in the Senate crossed over to vote against the abolition measure, and and Governor Rell has repeatedly said that she supports retention of the death penalty.

The Day reports:

The Connecticut Senate voted to abolish the death penalty early Friday morning after a marathon debate, narrowly approving a bill that would make life imprisonment without possibility of release the state’s highest criminal punishment.

The Senate approved the death penalty bill, 19-17, shortly after 4 a.m., after nearly 11 hours of debate. The same measure had previously passed in the House of Representatives, and proceeds to Gov. M. Jodi Rell, who has appeared likely to veto the bill.

If signed into law, the bill would make Connecticut the 16th American state without an active death penalty statute.

The bill almost died in the Senate. "Partisan acrimony virtually derailed the workings of the chamber, as the death penalty bill ran head-on into a deliberate slow-down effort by the Senate’s 12-member Republican minority, prompted by the minority party’s anger at the management of business in the Senate." Put another way, Republicans, even Connecticut Republicans, and some Democrats, even Connecticut Democrats, cling to the barbarism and caprice that is the death penalty. "Republicans filed 26 amendments on the bill, eventually calling five, and finally withdrew their remaining amendments from consideration after securing an agreement from Williams not to force a debate on reform of the state probate courts even later into Friday morning." The final vote was 17 against abolition. That means that 5 Democrats voted against abolition. You might ask what probate reform has to do with state killing.

You'll recall that just recently New Mexico abolished its death penalty when the bill was signed by Governor Richardson. Richardson took the matter seriously, requested input, and ultimately made the correct decision. What about Governor Rell?

Well, yesterday, Governor Rell had this to say:

Meanwhile, Rell reiterated her support for the death penalty Thursday, increasing the likelihood of a veto, which supporters do not have the votes to override.

“You know how I feel about the death penalty,” the governor said. “I’ve always believed there are some crimes that are so heinous it deserves the death penalty.”

And before that she repeatedly supported of state killing. In other words, this doesn't sound good.

Please lend a hand. Please take a moment to email Governor Rell at Governor.Rell@ct.gov or call her office at 860.566.4840 and ask her please to sign the death penalty abolition bill. Do it because it's the right thing to do. Do it because we need to join virtually all of the rest of the world and stop state killing.

Thank you!

Yesterday was a wonderful day for me and for everyone else who hopes that state killing will eventually be abolished in the US:

Gov. Bill Richardson, who has supported capital punishment, signed legislation to repeal New Mexico's death penalty, calling it the "most difficult decision in my political life."

The new law replaces lethal injection with a sentence of life in prison without the possibility of parole. The repeal takes effect on July 1, and applies only to crimes committed after that date.

"Regardless of my personal opinion about the death penalty, I do not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime," Richardson said.

Europe's human rights watchdog on Thursday hailed the decision as "a victory for civilization." The American Civil Liberties Union called it "a historic step and a clear sign that the United States continues to make significant progress toward eradicating capital punishment once and for all."

AP.

I wrote about this on several occasions, and I requested repeatedly in those essays that you call the Governor and urge him to sign the bill. It is especially for all of those phone calls to the Governor and your emails to him that I want to thank you. This is a great victory. And, truthfully, it would not have happened without your support. I applaud you!

I know that one abolitionist friend today is joyfully wearing a t-shirt that says, "Someday happens."

For the record: New Mexico became the second state, after New Jersey, to repeal the death penalty legislatively since 1965, when both Iowa and West Virginia repealed their death penalty laws. New York’s death penalty was struck down as unconstitutional, and it has not been re-enacted. Twelve other states never had the death penalty: they either outlawed it before 1965, or after 1972 after Furman v. Georgia struck down all death penalty laws, they never enacted a new one. Fifteen states, including New Mexico, now do not have the death penalty. Thirty-five states, the military and the U.S. federal government retain it.

Thanks! Let's do this again soon!!

h/t Abe Bonowitz

Last Chance To Ask Bill Richardson To Sign For Death Penalty Abolition

Today, Monday, is the last chance to call Governor Richardson at (505)476-2225 and ask him to sign the NM Death Penalty Abolition Bill that passed the legislature this past Friday.

Details about all of this is here.

No time for details? The shortest version: please call Governor Richardson at (505) 476-2225 and ask him please to sign the Death Penalty Abolition Bill. This will take only seconds, and it's terribly important to the cause of abolishing state killing.

Thanks for making the call.

Please Ask Gov. Richardson To Sign The Death Penalty Abolition Bill

This morning, I re-wrote my dailyKos diary from yesterday, put it up, and again asked people please to call New Mexico Governor Richardson and to ask him to sign the Death Penalty Abolition Bill. Here's what I wrote:

I posted this diary yesterday. I'm posting it again today because Governor Richardson is taking comments on the New Mexico Death Penalty Abolition Bill until Monday evening.

Friday, I wrote that the New Mexico legislature passed a bill calling for the abolition of that state's death penalty. The bill (pdf) has been sent to Governor Richardson for his signature. That's where you, my fellow Kossacks, come in. We all need to call the Governor and ask him to sign the bill.

Governor Richardson has formerly supported the death penalty, but he says he has not made up his mind about this bill:

Richardson, a second-term Democrat, has opposed repeal in the past but now says he would consider signing it.

"I haven't made a final decision," the governor said this week.

I want you, fellow Kossacks, to help him make his final decision, a decision to sign the abolition bill.

You can make a lasting contribution to the abolition of the death penalty in New Mexico and ultimately in the entire US, by making a single telephone call to New Mexico Governor Richardson and asking him courteously to sign the death penalty abolition bill. Just ask that he sign the bill. Here's the number: (505) 476-2225. The number will record your request. There is no human being on the phone, just a recorder.

Please spend 30 seconds making this call and make this request.

The logic for this is clear. The more calls the Governor receives, the more he understands that there is enormous support for him and for abolition and for his signing the bill. Huge support for signing makes it more likely that the Governor will sign the bill.

It's unbelievably simple what is needed. But it requires you, dear Kossacks, to take action, to make the call, to spend 30 seconds.

Please make this call. Please bring abolition of the death penalty to New Mexico.

Despite their directness, neither diary/essay generated a large response. Today's had about 20 recommendations; yesterday's, about 40. I have no idea how many people actually called Governor Richardson's number (505) 476-2225 and left a recorded message asking the Governor to sign the bill. I know that I did, and I trust that those who said they called in the comments actually called. Of course, I have no idea how many people just made the call after they saw the essay and didn't bother to click anything on dailyKos.

I also sent the first request for calls essay to a number of well known, large, leftwing blogs to ask them to help out with this, to ask them to ask their readership to call the Governor. This morning I awoke to see that none had responded to the request.

I don't really claim to understand how something that seems to me to be so important and so easy to carry out can have so lame a response. I'm not whining about this. I'm just saying that I don't understand it. I have no intention of spending additional time or energy trying to figure this out. I need to devote myself to trying to bring about results and not shunt myself onto some abandoned siding to analyze the meta.

So, dear readers, I am asking you to call Gov. Richardson and ask him to do the right thing, sign the bill, end the death penalty in New Mexico. It's easy. And it's the right thing to do.

Breaking: NM Legislature Passes Bill To Abolish Death Penalty

cross posted from dailyKos

Long story short, the NM legislature has passed the bill abolishing capital punishment in New Mexico and has sent it on to the governor for signature.

This happened about 15 minutes ago. Here's a first link to prove it's so.

Governor Richardson hasn't announced his decision on whether to sign it.

Now you can open that bottle of champagne and offer a toast to New Mexico and to the abolitionists who worked so hard and well to bring about this wonderful victory.

Bravo!!

The Las Cruces Sun-News tells the story:

The New Mexico Legislature has voted to repeal the death penalty and replace it with a sentence of life in prison without the possibility of parole.

The state Senate voted 24-18 on Friday for the repeal bill, sending it to Gov. Bill Richardson for his signature.

The House approved the legislation a month ago.

Richardson, a second-term Democrat, has opposed repeal in the past but now says he would consider signing it.

"I haven't made a final decision," the governor said this week.

According to the Sun-News, New Mexico has two men on death row whose sentences would not be affected by repeal.

What wonderful news!!!

Holder Steps In To End California Federal Death Penalty Case

Well, well, well. Maybe, just maybe, somebody has been listening to all of my complaining.

Cal Law reports:

New Attorney General Eric Holder has authorized a deal that could abruptly end a rare San Francisco death penalty trial only days after it began.

Not only does Holder's reversal likely spare defendant Emile Fort his life, but it may signal a less aggressive approach to the death penalty in federal court. And it vindicates the local U.S. attorney's office: Months ago federal prosecutors in San Francisco had recommended a 40-year plea bargain for Fort to their higher-ups in Washington — only to be rebuffed by Holder's predecessor, Michael Mukasey.

The jury heard opening statements Wednesday in the case against Fort, an alleged member of San Francisco's Down Below Gang who's accused of three murders. Yet when defense lawyers arrived in Northern District Judge William Alsup's court Friday morning — expecting another day of witness testimony — federal prosecutors announced their decision to deal, said Michael Thorman, one of Fort's attorneys.

Alsup dismissed the jury and scheduled a special hearing for today. The defendant had the weekend to decide whether he wants to plead out, and Thorman anticipated that he would.

There you go. No more Washington directed death penalty trial. Fort can plead to 41 years (40 plus no credit for 16 months in state custody), which, needless to say, is a huge and probably entirely appropriate sentence. And the federal death penalty is off the table. Just like that.

I'm applauding. This is definitely a step in the right direction. It's a step toward abolition.

h/t to Sam Pratt

Saving 49, strike that, make it 51 Lives (Part 8)

This may be my final, daily essay on this topic. This is my essay for Sunday, February 8, 2009, but I'm putting it up now.

This essay is about reason number 2,781 for signing this petition and for emailing Attorney General Holder at Whitehouse.gov or askDOJ@usdoj.gov to ask the Attorney General to reconsider whether prosecutors should seek the death penalty in the pending 49 50 51 federal death penalty cases, and when he determines that these cases are not appropriate for that extremely barbaric, horrific, inhuman penalty (no cases in actuality are ever appropriate for the death penalty), to direct prosecutors not to seek the death penalty.

As you can see, something distressing happened on Friday.

Unfortunately, the November, 2008 election didn't stop Bush and his Attorneys General from making decisions about which federal cases merited the death penalty. They continued to order federal prosecutors to seek the death penalty even as they were on their way out the door. And so on Friday, February 6, 2008, we learned that the United States Attorney for Connecticut had been directed by the former Attorney General to seek the death penalty in the case of Azibo "Dreddy" Aquart and his brother, Azikiwe "Zee" Aquart, and that a notice that the death penalty would be sought was filed in Federal Court in Bridgeport. I have no idea how many other notices will now be hauled out, all asking that the death penalty be imposed in federal cases, the final barbaric legacy of a corrupt Attorney General's office.

The Connecticut Post reports:

BRIDGEPORT -- Federal prosecutors are seeking the death penalty for two brothers accused of ordering and participating in the 2005 triple murders of rival drug gang members.

Acting U.S. Attorney Nora R. Dannehy notified Senior U.S. District Judge Peter C. Dorsey that her office will be seeking the death penalty if Azibo "Dreddy" Aquart, 28, and his brother, Azikiwe "Zee" Aquart, 29, are convicted "for one or more of the intentional killings" of Tina Johnson, 43: her boyfriend, James Reid, 40; and a visiting family friend, Basil Williams, 54.

The trio was found covered with blood after being bludgeoned to death in an apartment at 215 Charles St., where the Aquarts are accused of running a crack cocaine trafficking ring.

The faces of all three victims were covered with duct tape.

The Aquart brothers were indicted this past June. They remain incarcerated.

This isn't the first time the Attorney General ordered Connecticut federal prosecutors to seek the death penalty.

In 2003, federal prosecutors tried Luke "Mega" Jones, the head of a violent drug trafficking ring based in the P.T. Barnum Housing Project, on operating a continuing criminal enterprise that engaged in murder.

It was the first federal death penalty trial in at least 50 years in Connecticut.

After hearing evidence, Senior U.S. District Judge Alan H. Nevas declined to allow the death penalty charge to go to the jury after determining one of the murders was not linked to drug trafficking. Instead Nevas imposed four life sentences and two 10-year terms on Jones.

But apparently, even though Connecticut has a state death penalty statute, in Republican Attorney General land, it's always try, try, try again. Try to spread death. Try to expand state killing. It's always dogged persistence in the service of killing.

I think those of us opposed to state killing also need to be persistent. I've tried to model persistence for the past week. I will no doubt continue in the future. In the battle to end state killing, we repeatedly need to take to heart the wisdom of the Dalai Lama:

Never give up
No matter what is going on
Never give up
Develop the heart
Too much energy in your country is spent
developing the mind instead of the heart
Develop the heart,
Be compassionate
Not just to your friends but to everyone,
be compassionate
Work for peace in your heart and in the world
Work for peace, and I say again
Never give up
No matter what is happening
No matter what is going on around you
Never give up.

And so, I ask you again, dear reader, please don't give up. Not now. Not ever.

Please ask Attorney General Holder to review each of the now 51 cases in which federal prosecutors are seeking the death penalty, and ask him to determine that the death penalty is not appropriate in these cases, that a maximum penalty of life without parole will suffice. As I've said before, that's not asking a lot.

Please join the 115 people who have signed this Petition since February 2, 2009. Please sign the petition.

Please email the Attorney General at Whitehouse.gov or askDOJ@usdoj.gov. You can use this text or make up your own 500 character text:

Please review all of the determinations made by previous administrations to seek the federal death penalty. There are 49 defendants who presently face the death penalty because of decisions made by former attorneys general. Many of these decisions overruled local US Attorneys' views, were politically motivated, and do not meet the expressed criteria of the present administration for seeking execution. Such a review can save lives and restore confidence in the justice department. Thank you.

Please do all you can to stop state killing.

Saving 49 Lives (Part 6)

The voice of him that cryeth in the Wilderness
Isaiah 40:3

Ut oh. Ut oh. Ut oh. I'm wondering whether my little, disorganized, spontaneous, repetitive campaign to require the new Attorney General to review the 49 pending federal death penalty cases and to decide that federal prosecutors shouldn't be seeking the death penalty in these cases, has worn out my readership, my welcome, and any remaining goodwill. That's how it is, sometimes when there's more persistence than creativity. But I soldier on, vox clamatis in deserto.

The petition now has 75 signatures, for which I am incredibly thankful. If you haven't signed it yet, please do so. It is a concrete way to ask Attorney General Holder to review all of the 49 pending federal death penalty cases and to decide that his prosecutors have no business seeking the death penalty in these cases.

And many, many people have sent Attorney General emails at Whitehouse.gov or via askDOJ@doj.gov, the Justice Department's email address, encouraging him to review these 49 cases and not to seek the death penalty in them. Again, please do so, too.

This is the sixth essay in a weeklong series. You can also read Part 1, Part 2, Part 3, Part 4, and Part 5 at docuDharma and also at GOS and right here at The Dream Antilles.

Today someone asked me an interesting question about my efforts to have Attorney General Holder review these cases. Said he, "Can the Attorney General actually review these cases and change the previous decision on whether to seek the death penalty?" The answer is, yes, and it's happened before.

Here's a National Law Journal article from December, 2004:

On Nov. 12, Nicholas Garaufis, a federal judge who sits in the Eastern District of New York (Brooklyn and Long Island), criticized Ashcroft's decision to seek the death penalty in the pending murder trial of mob boss Joseph Massino. Convicted in July of seven racketeering murders, Massino already faces a mandatory sentence of life without parole.

"Mr. Ashcroft's choice to make such a sobering and potentially life-ending decision now," Garaufis read from a prepared statement at a court hearing, "after several delays, and only after tendering his resignation to the President and announcing to the country that he no longer wishes to preside over the Department of Justice, is deeply troubling to this court."

The judge acknowledged his responsibility to accept the decision, but added that he hopes Gonzales, upon taking office, will "reach an independent assessment."

"Accordingly," Garaufis said, "at the appropriate time, I shall issue an order directing the Government to resubmit the matter to the new Attorney General for his consideration."

Four days later came the announcement that Ashcroft had rescinded an order he issued in January 2003 demanding that prosecutors seek the death penalty in the murder trial of Jairo Zapata. The earlier decision drew immediate fire because lawyers from the U.S. Attorney's Office for the Eastern District of New York had already signed a cooperation agreement with Zapata. The attorney general's action was criticized for jeopardizing future agreements.

Ultimately, Massino pleaded guilty and Garaufis sentenced him to life without parole, as required. And the Government didn't seek the death penalty against Zapata.

The point: the Attorney General has previously reviewed decisions to seek the death penalty, and has also reversed the previous decisions. Attorney General Holder clearly can reverse any of the death penalty decisions made by his three Republican predecessors.

Please ask your friends, relatives, colleagues, family members to sign the petition and to write to AG Holder. And please, if you have any ideas that will bring others to making this request to the AG, leave them in the comments.

We can save these lives. Let's do that.

Saving 49 Lives (Part 5)

Evidently, though I'm all fired up about getting the new Attorney General to review all of the pending federal death penalty cases-- there are 49 of them-- and to forbid prosecutors from seeking the death penalty, not so many others are quite as ignited as I am. I think I know why.

The petition now has 62 signatures. Many people have emailed the Attorney General at whitehouse.gov or at askDOJ@usdoj.gov to request that he review these cases. I appreciate everyone's efforts on this.

Please join me in DC, where things are somewhat "different."

Others, however, have asked me an important question. Why, they ask, am I trying to start a confrontational, net based movement when I haven't formally asked the Attorney General, who was sworn in only yesterday, to do something, and he hasn't ever said that he wouldn't do it? Do I anticipate that he wouldn't listen once he has a chance to focus to the request I'm making? Well, yeah, usually, I confess, I think he wouldn't. Maybe I'm just cynical, or lacking hope, or well, demanding. Maybe I'm used to being on the far fringe and being thrown under any on coming vehicle operated by a common carrier.

Regardless, this argument for calm and reason made a certain kind of deflating sense to me. What if, I wonder, the AG actually did adopt my request? That would be remarkable, stunning, delightful. So why not give it a try? Why not see whether the new administration is listening?

So, I have decided to adopt a brand new, albeit far less fun strategy for today. For today only.

Today I am temporarily suspending my many efforts to start a wide ranging, internet based, popular movement to make demands of the Attorney General. Instead, I am only posting this diary and I am sending the following thoughtful letter to the new Attorney General:

February 5, 2009

The Honorable Eric Holder
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Re: Federal Death Penalty Cases

Your Honor:
I am a criminal defense attorney who has practiced in the state and federal courts for more than thirty years. I am writing to request that you review all of the prior Attorneys Generals’ decisions directing federal prosecutors to seek the death penalty, and that you withdraw permission for seeking the death penalty in all of the appropriate cases.

As I’m sure you are aware, under Attorney General John Ashcroft, the decision to seek the death penalty for federal crimes was “federalized.” United States Attorneys were no longer permitted to decide this question; the decision was made to broaden both the number of cases and geographical area in which death was sought. That regrettable policy, which was continued by Alberto Gonzalez and Michael Mukasey, has resulted in approximately 49 individuals presently facing the federal death penalty.

Previously, in response to requests by federal judges or prosecutors, the Attorney General has reviewed and reconsidered his decision to seek the death penalty. Those requests have sometimes resulted in withdrawal of the request for death.

In light of your previous, reported statements and the reported statements of President Obama, I doubt that the criteria previously used to determine that the death penalty should be sought, continue to have vitality. Accordingly, I am requesting that you now review these determinations, and if they do not meet the currently applicable standards to seek the death penalty, that you direct the United States Attorneys to withdraw their demand for the death penalty in these cases.

Thank you very much for your attention to this matter.

Sincerely,
davidseth

That will be my only activity on this issue other than this diary for Thursday. I will act like a responsible adult. For today. I make no promises about tomorrow. Or the next day.

I am, of course, inviting you, dear reader, to send a similar letter.

If after a reasonable amount of time the request in this letter has not been granted, i.e. by Friday morning at 11 am ET, I will again consider my other alternatives and I will again start beating the pots and pans. And writing essays. And sending emails and creating petitions. And stirring things up.

But for now, for today only, I have decided temporarily to pause and to wait and to see whether the current administration's promises of responsiveness will result in a favorable response to my request.

Will it? What do you think??

I should add this. This is what I call wonderful, beautiful help in reaching out to our fellow net citizens and to the new Attorney General. I am so delighted to see this. And, of course, you know that you can do the same thing. I know you can do it!!

Saving 49 Lives (Part 4)

I woke up Sunday thinking that Attorney General Eric Holder could save the lives of the 49 people who are presently facing the federal death penalty. He could save their lives simply by reviewing the determinations made by the Bush Administration AG's directing that federal prosecutors should seek death in these cases, and he could decide that death wasn't an appropriate maximum penalty in these cases. He could decide, for example, that life without parole was enough. More than enough. And this simple decision could save someone's life. This simple decision could also put the United States in the main stream of civilized countries in the world that do not impose the death penalty. Ever. And it could prevent us in the United States from having even more unjustifiable blood on our hands. And it would move us slowly, gradually toward ultimate abolition of the death penalty in the United States. What a great idea!

I made a small miscalculation, however. I initially thought that this was such a splendid idea, it's reasoning was so clear and so compelling that I'd post just a few items on the Internet, and send a few hundred emails, and then, poof! through the magic of the Internet there would arise a movement akin to the Alice's Restaurant Masscre, and wham! the Attorney General would get the message and Pow! 49 lives would be instantly saved. And best of all, I'd receive an email from Attorney General Holder saying, "Davidseth, Basta ya! Enough already! I will review all these cases. Thanks for the reminder." That would have been so very wonderful.

This, however, has not yet happened. There are still 49 people facing the federal death penalty, I have no email, and no review has been promised. By anyone. What was required, I was reminded by smart friends, my own experience, the ghosts of Saul Alinsky and IF Stone and Martin Luther King, was dogged persistence. So I decided to be dogged, to write an essay on the topic every day. Every day until I give up or something good happens. And I decided I wouldn't write about anything else for a while. I'd devote my daily time and essay allocation to only this one topic. I figured I have enough material for the first week. I don't mind repeating myself. This is, after all, Wednesday's essay. After that, who knows.

I'm reminded that the Argentinian writer Cesar Aira likes to write himself into corners from which he deftly extricates himself. I'd like to write an essay about that and how clever he is, but alas, I can't right now. I'm staying on topic, and the topic is the 49 people facing the federal death penalty and how to spare them. I realize that there are risks to this kind of persistence: boredom and ridicule. I will try not to deserve either.

What exactly do I want you to do? I want you to request that Attorney General Holder review each of these 49 cases. This is not very much to ask for. But it is, nevertheless, what needs to be done. I want you, dear reader, to take at least two very immediate, simple action steps:

First, I would like you to send a 500 character email to the White House to request that the Attorney General review the 49 cases in which the federal death penalty is presently being sought. Here is a suggested text (497 characters):

Please review all of the determinations made by previous administrations to seek the federal death penalty. There are 49 defendants who presently face the death penalty because of decisions made by former attorneys general. Many of these decisions overruled local US Attorneys' views, were politically motivated, and do not meet the expressed criteria of the present administration for seeking execution. Such a review can save lives and restore confidence in the justice department. Thank you.

You can of course edit and revise it and make it your own.

Second, I would like you to sign a petition asking Attorney General Holder to review these 49 federal death penalty cases and to tell federal prosecutors to withdraw their intention to seek the death penalty.

Which brings me to the further steps. The further steps have to be invented. They don't exist yet.

Please help me out with this.

You know how to use the Internet to spread this idea far and wide. Please do that. Please request that people write to the Attorney General and sign the Petition.

Please volunteer and spontaneously write an essay about this topic at your own blog or your favorite group blog.

Please think of other, creative steps that we can take so that the Attorney General will hear this request to review these cases and will act on it. And write those creative ideas in the comments.

Saving 49 Lives (Part 3)

There are 49 people presently facing the federal death penalty. If we wanted to, we might be able to spare them. We might be able to get the new Attorney General, Eric Holder, to review the decisions by the three Bush Administration Attorney Generals to pursue the death penalty in these cases, and if the new Attorney General thought, if there were convictions, that the defendants shouldn't be killed, he could require prosecutors not to seek the death penalty, to be satisfied with a maximum sentence of life without parole. This would be a remarkable development. It would save lives. The United States would join the civilized world that has stopped state killing. The essential hypocrisy of an eye for an eye would be abandoned. It would be a new era. We would not have these people's blood on our hands.

In general, the 49 people facing the federal death penalty aren't very nice people. They've been charged with horrible crimes. Many have previously been convicted of horrible crimes. Many of them really should be confined so that they will not kill and maim again. But the issue before the new Attorney General isn't whether to invite these people to a Georgetown dinner party. It's whether, once a jury has convicted them of terrible crimes, to ask that the jury vote to kill them. That is a step in the criminal process that can easily be foregone. Life without parole is a horrible sentence. And it is enough. It is enough in every single case.

So, I have been writing about the 49 lives and what it will take to save them. On Sunday, I wrote an essay which began with a discussion of how the three Bush Administration Attorney Generals had broken previous tradition and had decided that they, and not the local US Attorney in a district, should decide whether the death penalty should be sought in federal cases. I wrote that the new Attorney General should review each of these cases and should apply new criteria, his own criteria, to determine whether it was appropriate to continue to seek the death penalty in each of the cases. This made sense to me. I posted the essay here, at dailyKos, at Wild Wild Left, at Never In Our Names, and at my beloved The Dream Antilles. That it received little response didn't matter to me: it was Superbowl Sunday, and, after all, it was an essay about the death penalty. Most death penalty essays quickly degenerate into brawls in which some people, even on supposedly progressive blogs, argue that they're ok with the death penalty and that we should make it work better, to keep it from making the kinds of mistakes that have now caused the exoneration of more than 130 people who were sentenced to death.

The essays all scrolled off. The response was minimal. When I awoke on Monday, I thought I needed to keep this idea alive. So, instead of doing other, pressing things, I wrote an essay about the same topic, saving the lives of the 49 people facing federal death penalty prosecutions. I explained that I wanted readers to email the new Attorney General, Eric Holder, who was expected to be confirmed on Monday evening, and to request that he review all of the 49 pending federal death penalty cases and that he withdraw permission to seek the death penalty when the cases did not meet his criteria. I provided a link so that readers could send their own message to the White House, or the 500 character message I proposed to ask for this. I again posted the essay here, at dailyKos, at Wild Wild Left, at Never In Our Names, and at The Dream Antilles. I also sent the essay along to blogs dealing with criminal justice and to blogs dealing with criminal defense. I also sent the essay along to mailing lists dealing with death penalty abolition and death penalty defense. That this second essay received little response didn't matter to me: it takes a lot, an awful lot to get folks motivated to do anything about those who might be facing the death penalty. OPOL and NPK and others offered encouragement. I agreed to be persistent. I agreed to continue to raise the issue. But the second essay, also, scrolled off. And then there was again cavernous silence. And the 49 people were still facing the death penalty, and nobody in Washington was calling me to say that these cases would be reviewed.

Very well. I decided I needed to write a third essay, this one. I decided that I needed go through the whole drill yet again, but first, I decided that I would start an online petition asking Attorney General Holder to review all of the pending federal death penalty cases and to direct federal prosecutors not to pursue the death penalty if the cases didn't meet his criteria. I would tell you, dear friends, about this first. Tomorrow, when I can post again at the other blogs, I will edit this and post this there.

Why did I create and post an online petition? Generally, I dislike online petitions. I don't think they do very much. But I created this petition because I want to find ways of helping people to tell the Attorney General that it is important to us, that we want him to review the 49 pending death penalty cases, that we want him to save these lives. And also, it's important for us to have something that we can circulate across the wide and boundless Internet so that others can learn about this issue and can say, "Yes," I want the Attorney General to review these cases and cancel the prosecutors' authority to ask for death in each of them. The petition is an easy to use tool to spread the word.

I also created the online petition because I see that quickly, very quickly I am going to run out of material for essays on this topic. I think I have enough material for an essay every day this week. After that, I am afraid that I might start repeating myself even more egregiously than I am now. So be it. If I cannot write about anything else for the next month except getting Attorney General Holder to review these cases, so be it. Which brings me to you.

Please help me out with this.

Please post this essay or a link to it in your blogs. Please send this essay or a link to it to your friends, to your email lists and to other blogs that might post it. Please sign the petition. And when you sign, please send the petition to others who will in turn pass it along. Please send an email to the White House.

I realize how very odd all this is. I find it exceedingly strange to think that by having a lot of people send emails to the White House or sign a petition I have written or forward essays about this topic, that critical mass will be achieved and then the Attorney General will listen to the request and review the cases. I'm not used to having power listen to common voices like ours. So in many ways, this is a living experiment about democracy. In a democracy, our voices will be acknowledged.

This is a most idealistic, most hopeful thought. I don't know whether it will happen, but my intention is to keep banging away on this until it has a chance. I ask only that you join me in this effort in whatever ways you think are appropriate. It's not often that so many lives can be saved with what amounts to so little effort. And it's not often that we get to test our love of justice and our belief in democracy in such a practical way.

Saving 49 Lives (Part 2), The First Action

Yesterday I wrote about the 49 people facing the death penalty in the federal courts, and that these were lives we could save. This essay continues that discussion.

The Bush Justice Department went far, far off the tracks on torture, rendition, black sites, wiretapping, the federal death penalty, and on and on and on. It went so far afield that articles about this evening's expected confirmation of Eric Holder as Attorney General note the gigantic changes expected at DoJ from the new, Obama Administration. The NY Times, for example, writes:

The Justice Department, probably more than any other agency here, is bracing for a broad doctrinal shift in policies from those of the Bush administration, department lawyers and Obama administration officials say.

Eric H. Holder Jr., whom the Senate is expected to confirm on Monday as the nation’s 82nd attorney general, plans to take the oath of office that evening to demonstrate a quick start, which will include overseeing the creation of a new detention policy for terrorism suspects.

Mr. Holder will have to contend with that and other issues rapidly. Lawyers inside and outside the department say he will face crushing time constraints. Chief among them is a pledge by President Obama to close the detention facility at Guantánamo Bay, Cuba, within a year. Mr. Holder and a department task force must find a solution to the question of what to do with the remaining prisoners there and any apprehended in the future.

“This will be a sea change of what went on before,” said an Obama administration lawyer, noting that the principal authority over detention policies will move from the Defense Department under the Bush administration to the Justice Department.

The article also enumerates several of the important, pending cases in which AG Holder's DoJ has to make immediate decisions about the scope of habeas corpus and the state secret defense, among other topics, and anticipated changes in the Civil Rights Division.

Missing entirely from the article is mention of the 49 people presently facing federal death sentences. Have they been forgotten? Is the present administration going to permit their trials to go ahead and, if they are convicted, allow them to be executed? Are these 49 lives so unimportant that they don't require any attention? Shouldn't the administration revisit the Bush AGs' decisions that these cases were somehow appropriate ones in which to seek the death penalty?

Yesterday I wrote that we should be asking Attorney General Holder to review all of the previous administration's decisions to seek the death penalty in these cases. I pointed out that imo many of the federal death cases were selected for the political purpose of "federalizing" the death penalty, and not because of any specific non-political reason. I didn't request any specific action.

Today, I'm asking you, dear reader, to send an email via whitehouse.gov asking that the Attorney General review each of the pending federal death penalty designated cases to determine whether the death penalty is appropriate. The consequence of this, I hope, will eventually be a de novo review of each of the cases, the recognition that the United States, like the overwhelming majority of other nations in the world, can do very well with a maximum sentence, should there be a conviction, of life without parole, and that in light of this and other circumstances, seeking the federal death penalty is inappropriate. This review may actually save lives.

Please send an email to AG holder at whitehouse.gov. Your message has to be limited to 500 characters. Here's some help (497 characters):

Please review all of the determinations made by previous administrations to seek the federal death penalty. There are 49 defendants who presently face the death penalty because of decisions made by former attorneys general. Many of these decisions overruled local US Attorneys' views, were politically motivated, and do not meet the expressed criteria of the present administration for seeking execution. Such a review can save lives and restore confidence in the justice department. Thank you.

Please join me. Please send an email.

Remembering The Federal Death Penalty, Saving 49 Lives

It might be easy to forget the Federal Death Penalty. We might not want to think about it. It wasn't an issue in the past election. For eight years the Bush DoJ used its muscle to expand federal use of capital punishment by overruling local United States Attorneys' decisions not to seek death. Those political decisions to seek death are still very much in effect: the US government continues in court to seek the death penalty in all of those cases.

As the new Attorney General arrives in Washington, it's vitally important that the new DoJ immediately remember to re-evaluate all of the federal cases in which the death penalty is presently being sought. And it's important that if these cases do not meet their professed higher standards for imposition of the death penalty (this is an oxymoron, standards that allow state killing cannot be high), authorization to seek the death penalty be withdrawn. This may save 49 lives and prevent state killings from being carried out in our names.

Remember John Ashcroft? He who left the AG's office at the end of 2004? He who wanted to "federalize the death penalty?" Ashcroft's plan was that the Attorney General in Washington and not the local United States Attorneys, who would prosecute the crime and were located where the crime was alleged to have been committed, should decide which cases were appropriate for the federal death penalty. It wasn't right, the argument went, that in some places the death penalty was eschewed. So the feds would seek to have it imposed in federal courts in places like Michigan, Vermont, New York, places where the states had no death penalty. Then, the argument went, the death penalty would be more uniform. It wouldn't be an event occurring solely in the Southern Death Belt. That was supposed to be a good idea.

Ashcroft was succeeded by Alberto Gonzalez. He who wrote grotesquely inadequate memos to W about Texas death penalty commutation requests. He of the poor memory. He of the politicization of DoJ. He who explained so very little. Gonzalez, of course, continued to make decisions about which cases the feds would pursue the death penalty, and in which they wouldn't. And so did his successor, Michael Mukasey.

In response to questions from Senator Feingold, in June, 2007, DoJ laid out the entire history and all the numbers since 2001 here (pdf). In sum, there's a procedure for deciding what cases are death eligible. The procedure is basically a series of recommendations from lower to higher prosecution officials, but ultimately, the AG decides what should occur. That decision cannot be reviewed. How he makes the decision is never revealed. It's essentially a secret. And the criteria by which this decision is ultimately made have not been explicitly stated. If you're a judge or a defense lawyer or a prosecutor, you can ask that this incredibly important decision be reconsidered. And sometimes it is. But in general, the buck stops with the AG, who then acts like the Sphinx.

According to the Death Penalty Information Center, there are now 51 prisoners on federal death row in Terra Haute, Indiana. According to CapDefNet 23 federal death penalty cases are now on or awaiting trial, 5 are awaiting re-trial or re-sentencing after appeal, and 21 cases are now on appeal or seeking post conviction relief. In other words, 49 people have pending federal death penalty cases in which the Bush DoJ's decision to seek the death penalty, the decision made by Ashcroft, Gonzalez or Mukasey, makes the defendant eligible for execution.

These cases should all be immediately re-evaluated by Eric Holder and the Obama DoJ to determine whether they remain death penalty eligible. 49 lives stand in the balance.

There's no reason to believe that the criteria the DoJ initially applied in deciding to seek the death penalty in these cases, particularly the obviously political one of "federalizing" the death penalty, would meet the criteria Holder and/or Obama might require in these cases.

It is not clear what the present criteria for death eligibility might be or how they would be applied. Holder, for example, has said that he personally opposes the death penalty but has pursued it as a prosecutor and he told Congress it should "feel very assured that ... those statutes that have death penalty provisions will be fully enforced by me." And "Obama wrote in his recent memoir that he thinks the death penalty "does little to deter crime." But he supports capital punishment in cases "so heinous, so beyond the pale, that the community is justified in expressing the full measure of its outrage by meting out the ultimate punishment." I have no idea how these subjective measures might be calibrated and applied to the pending cases.

I am personally opposed to state killing in all cases. If it were up to me, I would withdraw death penalty eligibility in all of the pending cases, and I would instruct prosecutors never to seek the death penalty. I know the present administration doesn't agree with me about this. Fine. There is nevertheless the possibility of saving 49 lives. This does not mean releasing people who should be imprisoned. It means choosing a penalty, if they are convicted, that includes life without parole but not death.

This is not a small difference. It's a step toward ending the barbarity of state killing. It's a step toward joining virtually all of the rest of the world by ending state killing. Please join me in urging the administration to review all of the pending death eligibile cases and to withdraw the request for the death penalty in each of them.

Mississippi Supreme Court Dissenting Opinion Calls For Death Penalty Abolition

Mississippi has long supported the death penalty. So it is remarkable when a Mississippi Supreme Court Justice writes a dissenting opinion in a death penalty case that calls for the abolition of the death penalty. In Doss v. State (pdf), Justice Oliver Diaz, Jr., did just that, he called for the end of the death penalty.

The Sun Herald reports:

Outgoing Supreme Court Justice Oliver Diaz Jr.'s impassioned call for an end to the death penalty has drawn both criticism and praise.

In what was likely his departing dissent as his tenure on Mississippi's highest court ends, Diaz says society finally must recognize that "even as murderers commit the most cruel and unusual crime, so too do executioners render cruel and unusual punishment."

Jimmy Robertson, a Jackson attorney who served on the state Supreme Court from 1983 to 1992, said Diaz laid out a number of points, including that the death penalty is not a deterrent to murder, that were "pretty close to being irrefutable to anybody that's objective on the question."

The criticism in the Sun Herald article was provided not by Mississippians but instead solely by Kent Scheidegger, legal director for the pro-death penalty Criminal Justice Legal Foundation of Sacramento, a right wing, pro death penalty organization, who provided the usual shop worn generalities.

Justice Diaz's dissent came in the case of Anthony Doss who sought a new trial because the trial court never explored his claims of mental retardation or the adequacy of the representation he received at trial from a court-appointed attorney with no death penalty experience. Doss was sentenced to death fifteen year ago, in 1993, for his role in the armed robbery and killing of a convenience store clerk, Robert C. Bell.

Diaz wrote:

"Just as a cockroach scurrying across a kitchen floor at night invariably proves the presence of thousands unseen, these cases leave little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths."

"All that remains to justify our system of capital punishment is the quest for revenge, and I cannot find, as a matter of law, that the thirst for vengeance is a legitimate state interest. Even if it is, capital punishment's benefit over life imprisonment in society's quest for revenge is so minimal that it cannot possibly justify the burden that it imposes in outright heinousness."

The entire dissent is here (pdf) beginning at page 25.

This dissent is incredibly important to me. In 1984 I represented on appeal to the Mississippi Supreme Court a man who had been convicted of murder and sentenced to death in Gulfport, Mississippi. I handled this appeal without charge. I volunteered to do it (the story of how that happened is a separate essay for another day). Fortunately, I was successful and the conviction itself in State v. James Moffett, 456 So.2d 714 (1984), was reversed.

Back then, 24 years ago, if I had been appointed by the Mississippi Supreme Court to handle the appeal, I could have received the magnificent sum of $900 for my work. I didn't even get the $900 because the Court denied my motion to be appointed. I spare you the arithmetic of dividing this theoretical, gigantic sum by the number of hours I spent on the case. You don't need to figure out how much I would have made per hour. I wasn't doing the case for money. I did it because of an intense passion against the death penalty. But anybody who does criminal defense work knows that unless people are volunteering to provide free representation, which is an incredible gift and makes me extremely proud of those who do so, the accused gets a defense that's probably worth about what the state pays for it. Pleases note: this is not a slap at my extremely persistent and dedicated brothers and sisters in the defense bar who are the exception that prove the rule. They do incredible work because of their passion, not because of what they're paid. But they aren't the only ones handling these cases. On another day, as an illustration of this point, we can review all of the decisions courts have written about sleeping lawyers in death penalty trials.

Significantly, the topic of compensation and its relationship to the quality of defense arises in footnote 1 in Justice Diaz's dissent:

It must be noted that the unworkability of our capital punishment
system is due in no small part to the State’s utter inattention to publicly funded defense. The Mississippi indigent defense system is wholly inadequate to provide meaningful representation to the poorest criminal defendants. As Justice Graves has stated, “the State of Mississippi has failed to establish or fund a system of indigent defense that is equipped to provide all defendants with the tools of an adequate defense, and has therefore fallen short of its constitutional obligation.” Quitman County v. State, 910 So. 2d 1032, 1052 (Miss. 2005) (Graves, J., dissenting). Amazingly, in all criminal cases, court-appointed attorneys are entitled to no more than $1,000 compensation. Miss. Code Ann. § 99-15-17 (Rev. 2007). This problem is hardly a new one; in 1994, Justice Blackmun noted that Mississippi’s capital defense attorneys were compensated at an average rate of $11.75 per hour. McFarland v. Scott, 512 U.S. 1256, 1258, 114 S. Ct. 2785, 129 L. Ed. 2d 896 (1994) (Blackmun, J., dissenting from denial of certiorari).

Put another way, a death penalty trial isn't really a fair fight. It's not meant to be. The defense is almost always over matched by the state's endless resources. And that, I am sorry to report, is exactly the state's intention. The result is a flawed system that for this reason alone should be ended.

Maryland Police Spied On Activists, Claim It Was Legal

WaPO reports that Maryland police infiltrated and spied upon peace and death penalty abolition groups in 2005. The information the cops gathered was apparently sent to other law enforcement agencies. No crimes were alleged to have been committed by the activists.

That crushing sound you hear is the crumbling of the First Amendment:

Undercover Maryland State Police officers conducted surveillance on war protesters and death penalty opponents, including some in Takoma Park, for more than a year while Robert L. Ehrlich Jr. was governor, documents released yesterday show.

Detailed intelligence reports logged by at least two agents in the police department's Homeland Security and Intelligence Division reveal close monitoring of the movements as the Iraq war and capital punishment were heatedly debated in 2005 and 2006.

Organizational meetings, public forums, prison vigils, rallies outside the State House in Annapolis and e-mail group lists were infiltrated by police posing as peace activists and death penalty opponents, the records show. The surveillance continued even though the logs contained no reports of illegal activity and consistently indicated that the activists were not planning violent protests.

Then-state police superintendent Tim Hutchins acknowledged in an interview yesterday that the surveillance took place on his watch, adding that it was done legally. He said Ehrlich (R) was not aware of it. "You do what you think is best to protect the general populace of the state," said Hutchins, now a federal defense contractor.

Did you read that? The then state police superintendent says that the surveillance "was done legally." I feel so very assured and comforted by this conclusion about the law. And protected. Protected from what you might ask? And from whom? "To protect the general populace of the state" is a police goal that apparently does not include protecting the privacy and right of association of death penalty abolitionists and peace activists.

The WaPo article, after reporting this, turns to a "balanced" discussion of the "legality" of these activities. The ACLU properly says the infiltation and surveillance was illegal:

"To invest this many hours investigating the most all-American of activities without any scintilla of evidence there is anything criminal going on is shocking," ACLU lawyer David Rocah said at a news conference in Baltimore yesterday. "It's Kafkaesque."

The ACLU contends that the surveillance was illegal, even under broader powers the federal government gave law enforcement agencies after the terrorist attacks of Sept. 11, 2001.

The police, of course, insist that this kind of surveillance is entirely legal and necessary:

But the police force defends its legality, and some legal experts said the program appears to be a constitutional tool available to authorities investigating threats to public safety.

"No illegal actions by State Police have ever been taken against any citizens or groups who have exercised their right to free speech and assembly in a lawful manner," Col. Terrence B. Sheridan, the state police superintendent appointed last year by Gov. Martin O'Malley (D), said in a statement. "Only when information regarding criminal activity is alleged will police continue to investigate leads to ensure the public safety."

State Sen. Jamie B. Raskin (D-Montgomery), who teaches constitutional law at American University, called the surveillance "extremely dubious homeland security work." But he added that it is probably a constitutional use of police powers to conduct undercover work.

Henry Fawell, Ehrlich's spokesman, said: "State law enforcement uses a variety of means to keep its citizens safe. It would be inappropriate for me to discuss them publicly." While in office, Ehrlich supported both the Iraq war and the death penalty.

This analysis is extremely fuzzy. Of course police may infiltrate and surveil groups that are planning on carrying out illegal activities. They can, of course, infiltrate groups they have reasonable suspicion to believe plan to blow up buildings and kill people. But to do that, they need to have some indication-- leave aside for the moment the level of suspicion they must have-- that something illegal is planned. However, according to Uebercop Sheridan, all it takes to infiltrate your weekly peace meditation group is just an allegation "regarding criminal activity." And of course, whoever made that allegation is a secret, as is the nature of the allegation that was made.

And if no illegal activities of any kind are observed after the tip and after time, do you stop the infiltration and surveillance and record keeping? Of course, not. You never know when groups advocating an end to various kinds of violence will suddenly turn aside from satygraha and decide to plunge into committing crimes of violence, do you?

And Ehrlich's mouthpiece says all is OK because this is just a "means to keep [the] citizens safe." This doesn't bear scrutiny either. How does keeping records about people who are trying to end state killing keep citizens safe? How does keeping records and forwarding them to other agencies about people who are opposed to war keep citizens safe?
It doesn't.

Of course, the illegally acquired information was shared with other agencies who keep records:

Reports of the surveillance were shared with numerous federal, state and local law enforcement agencies, including the National Security Agency and Anne Arundel County's police department.

The groups monitored include the Campaign to End the Death Penalty, which has many members from Takoma Park, and the Pledge of Resistance-Baltimore, a peace group that has been vocal in opposing the Iraq war.

So now, whatever was written about the activists has been spread around and there are files in computers and many agencies about them. Their crime? Advocating peace and an end to state killing.

The article has more details about the spying.

There is no question whatsoever that the reported surveillance was completely inappropriate and illegal. And it has clear consequences in chilling protected activity. An example of this? Just notice, if you will, how even if you are entirely and completely non-violent the fact of this reported surveillance, and the possibility of similar surveillance elsewhere, deters you from signing up and participating in peace and death penalty abolition groups. Nobody wants their privacy invaded by the cops, even if they're doing absolutely nothing wrong. You don't need that. You might rather stay home.

Obama: Stop Pandering To Barbarians

The Supreme Court ruled 5-4 this week that Louisiana's statute permitting the death penalty for child rape was unconstitutional. The decision was a step against extending the barbarianism of the death penalty to crimes in which the victim was not killed.

Justice Anthony M. Kennedy wrote the opinion, saying, in essence, that the crime, awful as it is, does not merit capital punishment.

"The incongruity between the crime of child rape and the harshness of the death penalty poses risks of over-punishment and counsels against a constitutional ruling that the death penalty can be expanded to include this offense," Kennedy wrote.

He was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. source

Put simply, a majority of the Supreme felt that as a substantive matter, the death penalty for child rape was cruel and unusual punishment in violation of the Eighth Amendment and could not be permitted.

And now, the presumptive Democratic nominee, Barack Obama, says that he disagrees with the ruling. This from AP:

Democrat Barack Obama said Wednesday he disagrees with the Supreme Court's decision outlawing executions of people who rape children, a crime he said states have the right to consider for capital punishment.

"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes," Obama said at a news conference. "I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution."

Further explanation:

Obama, the likely Democratic presidential nominee, said that had the court "said we want to constrain the abilities of states to do this to make sure that it's done in a careful and appropriate way, that would have been one thing. But it basically had a blanket prohibition and I disagree with that decision."

Obama's view boils down to this: if the death penalty is "done in a careful and appropriate way" (an oxymoron if I ever saw one) it's ok for a state to expand the crimes for which the death penalty can be imposed. This is logic that would have Obama arguing that the 1977 decision in Coker v. Georgia, 433 U.S. 584 (1977), a "blanket prohibition" of execution for adult rape was incorrectly decided. Or that the decision in Roper v. Simmons, imposing a "blanket prohibition" against executing children was incorrectly decided. Didn't Georgis and Kentucky think that these were appropriate cases for death that they would impose "in a careful and appropriate way"?

In fact, Obama's argument sounds an awful lot like the 4 dissenting, conservative, pro-death penalty views in the Supreme Court:

The four members of the court's conservative wing also sharply criticized the ruling, saying a small but growing number of states had determined that the rape of a child deserved the death penalty; they said the court majority was interfering with that judgment.

"The harm that is caused to the victims and to society at large by the worst child rapists is grave," Justice Samuel A. Alito Jr. wrote. "It is the judgment of the Louisiana lawmakers and those in an increasing number of other states that these harms justify the death penalty."

Alito was joined in his dissent by Justices Antonin Scalia and Clarence Thomas and Chief Justice John G. Roberts Jr. source

How wonderful. A states' rights argument about state killing advanced by 4 conservative judges and Barack Obama.

And of course, John McSame, never to be left out of espousing barbarian views has the same position as Obama on the ruling:

His probable Republican opponent in the presidential race, Sen. John McCain of Arizona, also objected.

"Today's Supreme Court ruling is an assault on law enforcement's efforts to punish these heinous felons for the most despicable crime," McCain said. "That there is a judge anywhere in America who does not believe that the rape of a child represents the most heinous of crimes, which is deserving of the most serious of punishments, is profoundly disturbing."

Both candidates for president and 4 justices of the Supreme Court all espouse an expansion of the crimes for which the death penalty can be imposed by states. This is not "hope". This is barbarism, plain and simple. In a world in which the opinion is that the death penalty should be curtailed, the Democratic candidate is arguing for its expansion.

Obama's just not going to have a Dukakis moment on the death penalty. If it would get him elected, he'd suggest that we use electric bleachers for mass executions of child rapists.

I'm deeply saddened but hardly surprised by Obama's pandering. I only wish there were others who were as disgusted as I am who would call his campaign to task.